Point of Law: Motor Accident Claims - Contributory negligence - A person who either contributes or is author of accident would be liable for his contribution to accident having taken place.

JUDGMENT :

1. Heard Sri S.D. Ojha counsel for the claimants–appellants and Sri Ashish Kumar Srivastava for the Insurance Company. None for the owner, though served.

2. Though this is a defective appeal, we decided it finally as the dispute relates only to computation and negligence of the deceased as decided by the Tribunal.

3. This appeal, at the behest of the claimants, challenges the judgment and award dated 3.12.2010 passed by Motor Accident Claims Tribunal, Additional District Judge, Court No.02, Muzaffar Nagar(hereinafter referred to as 'Tribunal') in MACP No.235 of 2009 awarding a sum of Rs.92,375/- with interest at the rate of 6%.

4. This is a delayed appeal filed in the year 2011 though vehemently objected by the counsel. We condoned the delay in filing the appeal.

5. As the Insurance Company may not be saddled with interest after the matter would be admitted. Records be called. Paper books be filed and then enhancement is made as the judgment of the Tribunal is against the saddled principle enunciated by the Apex Court in Kirti Versus Oriental Insurance Company limited, (2021) 1 TAC page 1. We have requested the counsels to agree for getting the appeal disposed of today as it is covered by the judgment of Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others, 2017 0 Supreme (SC) 1050.

6. There is an error apparent on the face of record that the Tribunal has not considered awarding the amount under the head of what can be said to be future loss of income for the death of young person aged about 23 years of age who was a driver by profession. The Tribunal has considered his income to be Rs.3,000/-per month in the year 2009, applied multiplier of 15 and granted Rs.92,375/- under the head of non pecuniary damages. The deceased was survived by a minor daughter, widow and parents.

7. Sri S.D. Ojha, learned counsel for appellant submits that there are multiple errors first in considering the income, second not granting future prospects and third applying wrong multiplier and lastly considering the deceased to have contributed 75% to the accident having taken place.

8. Learned counsel for the respondent contended that the income considered cannot be said to be erroneous. The multiplier cannot be said to be erroneous and it is granted as per Law applicable. The amount awarded is just and proper under the head of non pecuniary damages considering the rules of Uttar Pradesh.

9. While considering the fact at the outset, we feel that the Tribunal has considered pecuniary damages as if considering the case under Section 163A of the Act, hence, the said finding is bad.

10. The question of contributory negligence has been discussed time and again. A person who either contributes or is author of the accident would be liable for his contribution to the accident having taken place.

11. The Division Bench of this Court in First Appeal From Order No.1818 of 2012 ( Bajaj Allianz General Insurance Company Limited Versus Smt. Renu Singh and others) decided on 19.7.2016 has held as under: -

"16. The term negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to cause physical injury to person. The degree of care required, of course, depends upon facts in each